An 'Aguilar' Factor?

Thursday, December 25, 2008 | 1

By Julius Young

IPhones, iPods and social networking sites aren't the only newfangled things coming out of Silicon Valley.

Now we have "Aguilar," courtesy of the San Jose-based 6th Appellate District of the Court of Appeal. A link to the text of Aguilar (Hertz Corporation vs WCAB and Manuel Aguilar) is included at the bottom of this post.

Aguilar deals with LeBoeuf issues under the "old" rating schedule. Dueling vocational experts testified as to whether Aguilar, a car detailer, was feasible for vocational rehabilitation. Aguilar had a long work history but limited English language skills and was virtually illiterate.

Two of the three justices noted that Aguilar's physical disability rating would be "around 60 percent", noting that was "even with his significant physical restrictions." Aguilar was noted to use a cane for ambulation at home and to and from his car. He sometimes required a walker for more extensive outings.

The vocational rehab counselor was of the opinion that with his language and literacy limitations, Aguilar was not able to do even very light duty jobs.

If the correct concept is that the defendant insurer takes the employee as they are, it would seem that it's the injury which creates the inability to compete in the open labor market (pre SB 899) or loss of earning capacity (post SB 899). After all, one of the first cases most law students read is a case about the "eggshell skull" plaintiff, dealing with proximate causation.

Moreover, Aguilar argued that language and illiteracy were "secondary factors" and that the physical restrictions were the "primary reason" he could not benefit from voc-rehab. Aguilar was an "old schedule" case, and Aguilar cited the LeBoeuf case in arguing that if he was not able to benefit from voc-rehab, he was 100% disabled.

That was an argument accepted by the trial judge and by the WCAB on defendant's appeal. Essentially, the trial judge found that Aguilar was not feasible for retraining and was therefore unemployable. But for the injury he would not have been totally disabled.

Defendant Hertz decided to take the issue to the Court of Appeal.

The 6th Court of Appeal does not reject the ongoing validity of the LeBoeuf opinion. But it does trim LeBoeuf where language and illiteracy are a factor in non-feasiblity for retraining.

Citing the voc rehab testimony, the court noted that Aguilar might be employable despite his physical restrictions and need to use a walker if "he had better language skills and education".

Like hundreds of thousands of hardworking folks, Aguilar (who worked as much as 80 hours a week and who had been employed by Hertz for around 15 years) had not finished school and had emigrated from Mexico (there is no indication that he was here illegally).

In the court's interpretation of the voc-rehab testimony, language and literacy was the factor that took him from being disabled but employable to disabled and infeasible for retraining and thus unemployable.

The problem, as noted by concurring Justice McAdams, is that this case may cause defendants to claim an "Aguilar factor" is cases henceforth.

Each human has natural strengths, abilities and skills.

Even the most talented "Renaissance man" (or woman) has things they can never do. I could never be a sommelier, a fighter pilot, an astrophysicist, an acrobat, a jeweler or a strip club pole dancer. Each involve special skills, intellectual traits, attention to detail, physical agility or sex-based characteristics I don't have.

I also tend to get numbness in my hands and feet when it's cold and wet, a characteristic which would probably make me not feasible for work around water or in very cold settings.

These factors may seem extreme. But could any number of such factors be raised to show that an otherwise disabling injury isn't the cause of loss of all ability to compete or loss of all earning capacity?

If you're a dumb-ass and can't work, is there a dumb-ass apportionment?

Where does this stop? Not at language, obviously. What if the worker was developmentally disabled (e.g. "retarded"). Would such a result obtain, or would we find that offensive?

In a future California that become more "brown" and more Spanish speaking by the day, will some "illiterate" Appalachian migrant pear-picker who falls from a Sacramento Valley orchard find that his inability to speak Spanish is a factor in his "infeasibility"?

Not jumping the shark here. Just asking questions. Questions that concerned Justice McAndrew enough to write a rather eloquent concurring but cautionary separate opinion. McAndrew cautioned against overuse of the "Aguilar factor".

Among my questions about the Aguilar case, I'd note:

Aguilar was noted to have sustained two separate knee injuries, one to his left knee and one to the right knee, as well as a cumulative injury to wrists and shoulders and an ankle; despite this, no mention is made of the Benson case. Benson (depending on what the First District Court of Appeal does) would seem to have major implications for Aguilar's claim on remand

Here's the link to a pdf version of the case:
http://www.workcompcentral.com/1/news/news_print.htm?id=837c6a4c820ef18912846f47ea8ff99aj&token=A68E61FBE868BEACDCDC7E4698F0314AF84421D81E452DFFD5B504316D4E12BA&state=CA

Julius Young is an applicants' attorney with Boxer Young in Oakland. This column was reprinted with his permission from his blog, http://www.workerscompzone.com